No Plea

An IllAdvised Opinion on the Injustice of Plea Bargains

It would seem difficult to imagine anything that divorces actual justice from the modern justice system than the relatively new phenomenon of ‘plea bargaining’. It has become more or less the regular thing for someone to be accused of a crime, let us say ‘Class A jaywalking’ and for the prosecutor to offer to ‘cut him a deal’ and let him plead guilty to ‘class B jaywalking’ (pause for some light laughter).

This deal is to the advantage of both parties: the prosecutor doesn’t need to put on a case, spend all that time and effort, and risk losing to a jury; the defense doesn’t have to spend all that time and money and risk losing; the defendant got off with a lesser sentence, and the judge didn’t have to sit through a case.

The thing lost in this system is the very concept of justice. 

One of the things that plea bargaining has allowed the modern prosecutor to do that his historical predecessors would not have been able to do is to accuse far more people than he can try. In societies in the past where the prosecutor had no need to ‘try’ a case, where he was basically judge, jury, and executioner; they could accuse as many people as their system of punishments gave them room for.

But in our society we theoretically have a system of juries that try cases; and no one is supposed to be punished unless they have been tried by a jury of their peers, the plea bargaining loophole has allowed millions of, possibly innocent, people to be sent to jail without our society having to go to the trouble of trying them. This is a very efficient system, and one that has allowed us to ‘accuse’ far more people that we would have otherwise ignored.

Is that a good thing? Or is it a bad thing? It certainly is a powerful thing. We lead the world in the number prisoners that we have in our jails and prisons. Far, far, above our nearest rivals even in totalitarian governments.

You can debate, amongst yourselves, the morality or immorality of that result. But while we are discussing plea bargaining I think it incumbent upon us to discuss a couple of other aspects of the issue that divorce that system from actual justice.

The first is the fact that plea bargaining is, basically, a form of extortion. Let’s take our infamous Jaywalker. Except let us suppose that he is innocent. Let’s suppose that the policeman did not see the situation correctly and he is not guilty of either class A or class  B jaywalking. He is not guilty of jawalking at all.

When the prosecutor comes to him with his ‘offer’ the man is in a bad place. He can risk a jury trial, and hope that justice prevailed, or he can ‘admit’ guilt to a crime he didn’t commit and get a lesser ‘punishment’ than the one he might end up getting.

When the crime is serious this was a huge issue. Sometimes the difference between the two might even be prison or not; working and living with your family, sleeping with your wife, raising your children… or not… for years!

And plea bargaining happens in the beginning of the process; before very much information is known about what evidence the police might have, how they would try the case, what the judge would allow. The defendant, who may never have faced the ‘criminal justice’ system before, is now faced with a whole world of possibilities, few of which he might understand. And a prosecutor who ‘holds all the cards’.

It isn’t the defence who gets to go before the judge with a ‘plea bargain’, but the prosecutor. It isn’t even the judge who decides what is fair. It is the prosecutor: the man with the police working for him.

Ironically in many jurisdictions the judge literally asks the defendant if ‘anyone had pressured him or offered him anything in regard for his plea’… and then deliberately and specifically makes an exception for the prosecutor! The system recognises as profoundly immoral the idea of pleading guilty to a crime because someone pays you to do so or offers you something, and then excepts the very person with the most power in the situation, the person whose job it is to put you in prison. The person who everyone knows is lying and perverting justice.

Does the word ‘extortion’ offend you? Let us remember that the prosecutor is offering this ‘plea bargain’ not in order to let you get a reduced sentence, but in order to lessen his own work load and allow him to do the same thing again to someone else!

Now let us look at an even more disturbing nature of the plea bargain. Assuming that few innocent people are placed in the position of being extorted by the prosecutor, we need to recognise that even so every single use of the plea bargain represents a perversion of justice. Without exception. All of them.

Let’s work through the various possibilities:

First of all lets ask ourselves a question: is there a ‘just’ punishment for class A and class B jaywalking? There are two possibilities:

Yes. There exists a just punishment for both crimes. In that case everyone who gets the just punishment has been punished justly, and everyone who doesn’t, hasn’t been.

Or no, there is no just punishment for these crimes. In that case everyone who is ever punished is punished unjustly.

So if we even dream of having a just society, we have to hope that there is such a thing as a just punishment for all of our various crimes. So let’s suppose there is. Let us suppose that a punishment of $1000 is a just punishment for class A jaywalking, and $500 is the just punishment for class B jawywalking. And let us suppose that, in their infinite wisdom, the legislature discovered this and passed the appropriate laws, and the governor signed the appropriate laws and so, viola, there they are on the books.

Now let us begin the plea bargaining process. We begin, as we said before, with a guilty party. He is guilty of outright, clear, Class A jaywalking. But he obviously doesn’t want to pay a thousand dollars. And we have our prosecutor who is eager to get our boy convicted, but doesn’t want to spend the time and energy it would take to get a jury of twelve men sound and true to do it.

Enter the plea bargain. The prosecutor goes to the defence lawyer and says, “Let’s cut to the chase. I’ll let your boy plead to class B jaywalking and we can avoid all the fuss of a trial.”

So our defence lawyer goes back to our boy and he reaches for a pen. Five hundred bucks is a lot better than a thousand, plus lawyer expenses, so he signs on the dotted line. And we have… injustice. We agreed, above, that the correct, just, moral punishment for the awfulness of class A jaywalking was one thousand dollars. And here this skunk has committed that vile crime and is walking for only five hundred dollars! Injustice.

If we turn it around the situation is no better. Let us suppose that five hundred dollars is actually the correct punishment, so our boy here paid his due. How then do we justify it when the next man walks in and says, no, I want my rights, gets his jury trial, is convicted, and has to pay the full thousand dollars? He was judged guilty of class A jaywalking, and is fined double the just amount.

And the injustice of the system is compounded a thousand fold if we throw our innocent man back into the system. Not even guilty of class A jaywalking, or class B, if he loses at trial he ends up paying twice as much as the man who knew he was guilty! His very knowledge of being innocent has cost him, in this perverse system, one thousand dollars, plus lawyers fees and the like.

I would like to add one more glorious feature of our system of plea bargaining: it engraves deception. In a feature worthy of 1984 we have defence, prosecutor, judge, and defendant literally saying all something that they all know isn’t true. It is false on its face, it is known to be false, it has even been stated to be false in open court.

The defendant has been accused of class A jaywalking because that is what the prosecutor believes has happened. The defendant pleads guilty to class B jaywalking even though everyone knows that isn’t what happened. Whatever the qualities that move jaywalking from class B to class A everyone knows they didn’t take place.

Unless, of course, and this is one of the more profound evils of the system, unless the prosecutor knew he did NOT have the evidence to prove class A jaywalking. Unless he charged him with class A, despite the evidence, in order to get him to plead guilty to class B, which he thought he really did commit. Unless, that is, the prosecutor is deliberately being deceptive in his accusation.

That might be the most evil possibility in a system rife with evil possibilities. 

So many of our books, blogs, movies, and the like make it seem as if justice was a game. As if, as long as everyone played by the rules, the defendant, and the society, gets 'due process'. No one can define a perfect justice system for imperfect humans. Indeed the very need for a justice system indicates we are dealing with human evil, and we all know that that evil resides in the heart of every man and that evil will pervert every system.

But far too many of the aspects of our modern judicial system, and pretty much all of the way we think about it, seem far better suited to something that happens on a playing field. We all chuckle when one chess player lays a cunning trap for his opponent. We love watching trick plays on the football field.

But when a prosecutor uses some trick, some device, some loophole... even without evil intentions... just in pursuit of his stated goal of 'getting a conviction', that is the time when we all ought to take a step back and realise that this is not a game. That this is not a matter of one touchdown or not, of one pawn one or lost, but of a real persons real life, and the real issue of justice as a society.

Whether a plea bargain lets the guilty get off with a lesser punishment, or extorts an innocent person into confessing a crime he did not commit, it is always a miscarriage of justice. And we should very much care about that.